scholarly journals War Crime Pardons and Presidential (Self-) Restraint

2021 ◽  
Vol 33 (5) ◽  
pp. 313-318
Author(s):  
Daniel Maurer
Keyword(s):  
Armed Forces ◽  
War Crimes ◽  
Sufficient Evidence ◽  
Military Leaders ◽  
Combat Experience ◽  
Military Justice ◽  
Formal Restriction ◽  
Uniform Code ◽  
The Military ◽  
Commander In Chief

In 2019, then-President Trump pardoned three military officers for battlefield misconduct that could have been charged as war crimes. These were the first such pardons in American history and left many current and former members of the Armed Forces bewildered: these officers had all been charged by their military chains-of-command after sufficient evidence indicated culpability, and in two of the cases, military juries (“panels”) consisting of high-ranking officials with combat experience had convicted the officers and sentenced them to hefty federal prison terms. The granting of clemency under these circumstances has proven fraught with consequences – consequences adversely affecting the relationship between the president as commander-in-chief and the senior military leaders who cautioned against such extrajudicial mercy. Nevertheless, the president’s authority to do so, under Article II of the Constitution, is nearly without limit, and no other statute, case law precedent, or other formal restriction prevents him from doing so. This article approaches the problem from an assumption that neither the Constitution itself will be amended to carve out such crimes from the president’s reach, nor that Congress will amend the Uniform Code of Military Justice or the War Crimes Statute to chip away at this power by enacting administrative conditions on its exercise. Rather, this article suggests that the most likely and practical tool to prevent such pardons in the future is the reasonable, prudential exercise of restraint by the commander-in-chief. Several contingent factors, based on the possible timing of the pardon in relation to where the case is in the military justice process, are identified as a framework for exercising this prudential restraint notwithstanding the Constitutional authority to ignore it.

The army and the collapse of the Habsburg Monarchy in 1918

2021 ◽  
pp. 235-244
Author(s):  
Vladimir V. Mironov
Keyword(s):  
Armed Forces ◽  
Habsburg Monarchy ◽  
Military Justice ◽  
The Social ◽  
The Military ◽  
Military Units ◽  
Marxist Tradition ◽  
Russian Model ◽  
National Issue

The process of disorganization of the armed forces of Austria-Hungary in 1918 is considered through the prism of the national issue and the prospects for the further preservation of the Habsburg Monarchy. It is concluded that the military and diplomatic victories won in the early 1918 by Austria-Hungary were illusory and only put off the inevitable defeat of its army. Investigation of the first cases of mass withdrawal from obedience of military units in the spring and summer of 1918, showed that they were an interweaving of social, national-political and military reasons proper. At the same time, a serious discrepancy was revealed between Slovenian and Italian researchers in the interpretation of the reasons for the uprising in the 97th infantry regiment stationed in the Slovenian Radkersburg (Radgon). If for the former it was typical, following the Marxist tradition, to emphasize the social contradictions that led to the revolutionization of the army according to the “Russian model”, the latter praised the participants in the uprising from the Italian side as genuine national patriots. It is shown that the “shock force” of all the soldiers’ uprisings that broke out in the spring and summer of 1918 in the Austro-Hungarian army were servicemen who returned from Russian captivity in the spring of 1918, where some of them were imbued with revolutionary ideas. The conclusion is drawn about the extreme severity of military justice, which condemned many of the insurgents to death, which became the reason for deputy inquiries.

Brothers in Arms?

2021 ◽  
pp. 344-369
Author(s):  
Thomas A. Guglielmo
Keyword(s):  
World War Ii ◽  
Native Americans ◽  
Home Front ◽  
Military Leaders ◽  
Military Justice ◽  
The Pacific ◽  
The Us ◽  
The One ◽  
The Military ◽  
Race War

Chapter 9 looks at what happened to the US military’s white-nonwhite lines as American troops moved overseas during World War II. Nonblack minorities faced both bright and blurry white-nonwhite lines when deployed abroad. At times, the military remained determined to uphold distinctions between whites, on the one hand, and Asian Americans, Latin Americans, and Native Americans, on the other. This determination, evident in everything from military justice proceedings to promotion patterns, stemmed primarily from long-standing civilian investments in these distinctions and in response to the vicious race war in the Pacific with Japan. At the same time, overseas service also witnessed the continued blurring of white-nonwhite lines—the transformation of “Mexicans,” “Puerto Ricans,” “Indians,” “Filipinos,” “Chinese,” and even “Japanese” into whites’ buddies and brothers, comrades and fellow Americans, deepening a process that had begun on the home front. While this overseas blurring often emanated from day-to-day battlefield bonding, it was America’s military leaders and commanders who largely made it possible. In doing so, they narrowed the white-nonwhite divide, but also deepened the black-white one in the process.

scholarly journals YURISDIKSI PERADILAN TERHADAP PRAJURIT TENTARA NASIONAL INDONESIA SEBAGAI PELAKU TINDAK PIDANA

2014 ◽  
Vol 3 (2) ◽  
Author(s):  
Niken Subekti Budi Utami ◽  
Supriyadi ,
Keyword(s):  
Data Analysis ◽  
Qualitative Methods ◽  
Secondary Data ◽  
Armed Forces ◽  
Primary Data ◽  
Military Justice ◽  
Empirical Law ◽  
The Military

<p align="center"><strong>Abstract</strong></p><p><em>This research intends to find the answers of two problems. First, the factors that led to the unimplemented jurisdiction of the General Court of the Indonesian Armed Forces (TNI) that perform general crime as mandated by Decree No. VII / MPR / 2000 and Act No. 34 of 2004. Second, the perception of the military conception of justice with jurisdiction over soldiers who committed the crime. This study is a normative- empirical law that uses secondary data and primary data. The data collected by the study of documents and interviews. The data analysis using qualitative methods. The results showed that first the jurisdiction of the General Court of the soldiers who committed the crime can not be implemented because of the general Act No. 31 of 1997 on Military Justice has not been revised by Law Military Justice as new, second that some of the military still wants the soldiers who committed the crime, criminal acts both military and general crime, is in the jurisdiction of Military Justice.</em></p><p><strong>Keywords: </strong><em>Jurisdiction Court, Indonesian Army Forces (TNI)l, Crime.</em></p><p align="center"><strong>Abstrak</strong></p><p>Penelitian ini bertujuan untuk menemukan jawaban atas dua permasalahan. Pertama, faktor-faktor yang menyebabkan belum diimplementasikannya yurisdiksi Peradilan Umum terhadap prajurit Tentara Nasional Indonesia (TNI) yang melakukan tindak pidana umum sebagaimana diamanatkan oleh Ketetapan MPR Nomor VII/MPR/2000 dan  Undang-Undang Nomor 34 Tahun 2004. Kedua, persepsi kalangan militer mengenai konsepsi peradilan yang berwenang mengadili prajurit TNI yang melakukan tindak pidana. Penelitian ini merupakan penelitian hukum normatif-empiris yang menggunakan data sekunder dan data primer. Pengumpulan data dilakukan dengan studi dokumen dan wawancara. Analisis data dilakukan dengan menggunakan metode kualitatif. Hasil penelitian menunjukkan bahwa, pertama yurisdiksi Peradilan Umum terhadap prajurit TNI yang melakukan tindak pidana umum belum dapat diimplementasikan karena Undang-Undang Nomor 31 Tahun 1997 tentang Peradilan Militer belum direvisi dengan Undang-Undang Peradilan Militer yang baru, kedua bahwa beberapa kalangan militer tetap menghendaki agar prajurit TNI yang melakukan tindak pidana, baik tindak pidana militer maupun tindak pidana umum, berada pada yurisdiksi Peradilan Militer.</p><strong>Kata Kunci: </strong>Yurisdiksi Peradilan, Prajurit TNI, Tindak Pidana

Virtual Legality

2001 ◽  
Vol 34 (5) ◽  
pp. 555-574 ◽  
Author(s):  
ANTHONY W. PEREIRA
Keyword(s):  
Latin America ◽  
Democratic Transition ◽  
Armed Forces ◽  
Authoritarian Regimes ◽  
Democratic Transitions ◽  
Military Justice ◽  
Transitions To Democracy ◽  
Legal Justification ◽  
The Military ◽  
Relevant Factors

Authoritarian regimes in Latin America frequently expanded military court jurisdiction to prosecute political opponents and protect members of the armed forces and police engaged in repression. What happened to the military courts after the recent transitions to democracy in the region? Why did some democratic transitions produce broad reform of military justice while most did not? This article first reviews contending theoretical explanations that offer answers to these questions, comparing those answers with actual outcomes in Argentina, Brazil, Chile, and Mexico. It then argues that the “mode of transition” perspective, which attributes variation in the extent of military justice reform to the autonomy and strength of the military in the democratic transition, best explains the outcomes in these cases. However, the military's autonomy and strength should be specified. In the area of military justice, the relevant factors are the military's propagation of an accepted legal justification for past uses of military courts and the creation of congressional support for the maintenance of existing military court jurisdiction. Both of these factors are present in Brazil, Chile, and Mexico, where little or no reform of military justice took place under democratization, and absent in Argentina, where broad reform did occur.

Officers of the Russian Imperial army as part of the confrontation sides of the Tambov rebellion of 1920–1921

2020 ◽  
pp. 234-244
Author(s):  
Vladimir V. Kanishchev
Keyword(s):  
Military Service ◽  
Political Leadership ◽  
Armed Forces ◽  
Soviet Power ◽  
Political Repression ◽  
Military Leaders ◽  
The Social ◽  
Sufficient Degree ◽  
Almost All ◽  
The Military

We consider a new aspect of the well-studied themе, related to objective circumstances and subjective motives for choosing a life position in the Civil war: the entry of former officers of the Russian Imperial army into the ranks of the Soviet or rebel armed forces. First of all, contradic-tions in information about the pre-revolutionary and post-revolutionary military service of a se-lected circle of persons are revealed. With a sufficient degree of accuracy, 16 former officers who became the leaders of the suppression of the “Antonovshchina” in 1920–1921 and a maximum of 23 rebel commanders from the ranks of officers of the “old” army are identified. Differences of the social and professional image of the commanders of the opposing sides are established. Among the Soviet commanders, career officers from different classes prevailed, including 5 peasants (only 1 – Russian), of non-Tambov origin, who entered the region no earlier than 1917. On the contrary, among the rebel military leaders, all, except for one tradesman, came from the peasant class (only 3 were not from the Tambov Governorate). However, the loyalty of some former rebel commanders to their political leadership was low. Therefore, the study specially analyzes the “psychology of betrayal” of such people who went over to the side of the Soviet troops. The military leaders of the suppression of the Tambov rebellion, who came from the officer environment, made a choice in favor of Soviet power in 1917–1918 and by 1920 they repeatedly showed loyalty to the “workers’ and peasants’ state”. However, for the time being, this state recognized the devotion of, in principle, alien to it “gold-chasers”. In the 1930s almost all officers who took part in the suppression of the Tambov rebellion became victims of political repression.

Brazilian Federal Military Justice’s Jurisdiction to Prosecute Civilians

2016 ◽  
Vol 20 (3-4) ◽  
pp. 171-185
Author(s):  
Carlos Augusto de Sousa
Keyword(s):  
Human Rights ◽  
Legal System ◽  
Due Process ◽  
Armed Forces ◽  
Criminal Code ◽  
The Other ◽  
Military Justice ◽  
Adversarial System ◽  
The Supreme Court ◽  
The Military

Brazilian Federal Military Justice has received criticism, especially with regard to the jurisdiction to try civilians in peacetime. However, this judgment protects the interests of the military and rests on the most current positivity. There is no incompatibility between the Constitution and the rule established by Article 9 of the Military Criminal Code. The competence therein derives from the legislature’s intention that used the original ratione legis and also the ratione personae criteria to fix it. On the other hand, the doctrine and the Supreme Court understand that the protection of the interests of the Armed Forces are not restricted to the hierarchy and discipline, recognizing the competence of military courts to try civilians, also in the light of its peculiarity. It is important to emphasize the Brazilian Federal Military Justice is neither a martial court nor an administrative tribunal, but a branch of the Judiciary Power. Its guiding principles are in line with the human rights enshrined in the Brazilian legal system and the American Convention on Human Rights. Under the auspices of the adversarial system, the trial of civilians by federal military court does not violate the guarantee of due process, since every process started respects the superior constitutional principles.

Tumultuous Times

2019 ◽  
pp. 250-272
Author(s):  
Anit Mukherjee
Keyword(s):  
Armed Forces ◽  
Military Leaders ◽  
Civil Military Relations ◽  
Military Relations ◽  
The Military

This chapter discusses contemporary civil–military relations in India, engaging with, and occasionally refuting, a number of narratives. It begins with an overview of four main controversies—the dispute about withdrawal of troops from the Siachen glacier, the contrasting views over the Armed Forces Special Powers Act (AFSPA), the tenure of General V. K. Singh (chief of army staff from 2010 to 2012), and issues arising from pay commission reports and the equivalence between civilians and the military. These issues highlight the overall theme of this book—that there is considerable distrust and tension between civilians and the military. Next, it briefly discusses civil–military relations under the Modi government. Thereafter, it examines the issue of defense reforms, considered by many as a panacea to overcoming these difficulties. This is followed by an analysis of the divergence in the positions typically taken across all three levels—political, bureaucratic, and the military leaders.

ACTIVITIES OF THE MILITARY PROSECUTOR’S OFFICE IN THE CONDITIONS OF CHANGES IN LEGISLATION

2018 ◽  
Vol 32 (32) ◽  
pp. 239-255
Author(s):  
Mukola Turkot
Keyword(s):  
Law Enforcement ◽  
National Security ◽  
Armed Forces ◽  
The State ◽  
Law Enforcement Agencies ◽  
Military Justice ◽  
Law Enforcement Agency ◽  
Military Security ◽  
Military Law ◽  
The Military

Тhe purpose of this article is to show the state of the functioning of law enforcement agencies in Ukraine, which are fighting against military crime. In addition, the algorithm for the activities of the military prosecutor’s office is shown after changes are made to the legislation. It was noted that the national security of Ukraine and its military security are protected by the Armed Forces of Ukraine and other military formations. In these military formations serve soldiers, officers and generals. The tasks of each military formation are different. Introduction. The article defines the national security of Ukraine, the military security of Ukraine, and how security is created. The same is said about the subjects of ensuring the security of the state. The same is said about the subjects of ensuring the security of the state. It is separately noted that there is a bill on the State Bureau of Military Justice. This military law enforcement agency should implement the functions of pre-trial investigation against servicemen and others. The research methods are used taking into account the topic of the article, the problems that need to be addressed, and the conclusions to be drawn. Such methods were used: formal-logical, hermeneutical, comparative. Thanks to these methods, it was possible to compare the competence of military formations in Ukraine, to determine the necessary legal possibilities for the future law enforcement agency – the State Bureau of Military Justice. The conclusions contain the author’s statement that the time has come to create, in addition to the military prosecutor’s office, yet another law enforcement body whose competence extended to all military formations. This is due to the fact that in Ukraine at the moment there is no shadow of one military formation, whose competence extends to other military formations. The exception is the military prosecutor’s office.

scholarly journals The Geneva Boomerang: The Military Commissions Act of 2006 and U.S. Counterterror Operations

2007 ◽  
Vol 101 (1) ◽  
pp. 56-73 ◽  
Author(s):  
Jack M. Beard
Keyword(s):  
United States ◽  
Bush Administration ◽  
The United States ◽  
Military Justice ◽  
Uniform Code ◽  
Military Commissions ◽  
The Military ◽  
Legal Consequences ◽  
Practicable Method ◽  
The U.S

Over five years have passed since President George W. Bush issued the much-criticized order making an obscure device, military commissions, the primary tool for the United States to bring accused Qaeda terrorists to justice. Some legal scholars suggested in the wake of the issuance of that order that military commissions were the only practicable method available to address many of the problems presented by the trial of accused terrorists in civilian U.S. courts. True or not, it is clear that the decision to approach the problem of terrorists primarily in terms of war rather than crime continues to have far-reaching legal consequences. Following the Supreme Court’s decision in Hamdan v. Rumsfeld, which found that the military commissions designed by the Bush administration were inconsistent with the requirements of both the Uniform Code of Military Justice (U.C.M.J.) and the law of war as incorporated in that statute, the U.S. Congress attempted to fashion a compliant charter for these commissions through the Military Commissions Act of 2006 (MCA).

scholarly journals «The anti-soviet trotskist organization»: historiographical notes

2016 ◽  
Vol 5 (1) ◽  
pp. 106-109
Author(s):  
Mikhail Dmitrievich Tochiony
Keyword(s):  
Soviet Union ◽  
Armed Forces ◽  
Military Leaders ◽  
Military Organization ◽  
Social Sciences And Humanities ◽  
The Soviet Union ◽  
Red Army ◽  
Key Issues ◽  
Severe Punishment ◽  
The Military

Since 1956, historians, legal scholars and representatives of other social Sciences and Humanities have been trying to understand what happened to the population of our country in the second half of the 30-ies of XX century. Why did people lose common sense and believe in delusional fabrications of I. V. Stalin about the transformation of millions of Soviet citizens who piously believed in the ideals of Marxism-Leninism, into the malignant saboteurs? Why did most of them demand severe punishment of traitors, when the Soviet Newspapers reported the discovery of an enormous conspiracy in the ranks of the Red army? The article is an attempt to assess the General opinions of the so-called military (anti-Soviet Trotskist military organization), which resulted in the shooting of the prominent Soviet military leaders led by M.N. Tukhachevskiy - I.P. Uborevich, I.E. Yakir, A.I. Cork and thousands of brave, talented Soviet soldiers, committed to the cause of socialism. Thus the armed forces of our country, its defense was dealt a severe blow, which, in the opinion of some researchers predetermined the huge losses of the Soviet Union, especially in the first years of Hitler's aggression. We are especially interested in the following aspect of the military - was it fabricated, and the Red Marshal was its innocent victim, or, on the contrary, was it investigated in complete conformity to the law and the perpetrators got the punishment they deserved? The author has assessed the key issues - both liberal-minded researchers and apologists of Stalinism.

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